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Condonation or Remission of debt
mainly discussed in Chapter 4 - Section 3 (Articles 1270-1274) in Title I of Book IV of the Civil Code of the Philippines. The condonation or remission of debt is a mode of extinguishment of obligation wherein the creditor gratuitously renounced his right against the debtor with the latter's acceptance. The remission is simply a form of donation. It may be made expressly or impliedly. Requisites of Remission A condonation or remission of an obligation requires: * agreement between the parties; the creditor renounces his right in an obligation and the debtor accepts it. The renunciation and the acceptance is essential. * act of liberality, generosity or gratuitousness; no equivalent received for the benefit given. Without such, the mode of extinguishment may be dation in payment, cession, novation or compromise. * capacity and consent of the parties. * subject matter or the object to be condone. * remitted obligation to be demandable at the time of remission. * donation to be not inofficious; otherwise, it can be revoked or reduced by the court as governed by the rules concerning inofficious donations. * if made expressly, the formalities of a donation or a will or a codicil. A remission shall be proven with very clear and strong evidence, more than what is required in establishing a payment or performance. The creditor's unilateral renunciation without the debtor's acceptance may be legally allowed, but it does remit an obligation since there is no agreement between the parties. A remission also applies the accessory follows principal rule. The remission or renunciation of the principal debt also extinguishes the accessory obligation, but the renunciation of the accessory would not extinguish the principal. Kinds of Remission according to its effect or extent: *''complete/total'' - covers the whole or entire obligation. *''partial'' - covers only a part or portion of an obligation; may refer to accessory obligation. according to its date of effectivity: *''inter vivos'' - takes effect during the lifetime of the donor. *''mortis causa'' - takes effect after the death of the donor. according to its form: *''express/formal'' - made either verbally or in writing; formality is required to probate or establish legal validity: **formalities of a donation if inter vivos. **formalities of a will or codicil if mortis causa. *''implied/tacit'' - inferred or derived from conduct, which is sufficient; no formality required. Presumption of Remission A condonation or remission is presumed in case of: * delivery of the document by the creditor. * possession of the document by the debtor. * possession of the thing by the debtor or a third person. The above cases are prima facie or sufficient to raise a presumption unless disproved. The presumptions are applicable only to private document since a copy of public document is easily obtainable, being a public record. The presumption of remission pertains to the whole obligation of the debtor in a solidary obligation, while it pertains only to the share of the debtor who possessed the document/thing in a joint obligation. ---- Delivery of the Document by the Creditor There is presumption of implied remission or renunciation in the voluntary delivery of the (private) document of indebtedness by the creditor. Such remission is presumed until an evidence proves: * the waiver is inofficious; the delivery of the document was made in virtue of payment of the debt as proven by the debtor and his heirs. * the delivery is not for voluntary donation; as it was only for collection or examination. ---- Possession of the Document by the Debtor There is presumption of remission when the (private) document of indebtedness was found in the possession of the debtor, without knowing how. It presumes that the document was voluntarily delivered by the creditor without payment. ---- Possession of the Thing by the Debtor or a Third Person There is presumption of remission when the thing pledged was found in the possession of the debtor or a third person who owns the thing after its delivery to the creditor. It is essential in a pledge that the thing be delivered to the creditor, or to a third person by common agreement. Only the accessory obligation of pledge is presumed remitted as the principal obligation remains in effect. The debtor shall hence continue to be indebted but he does not have to return the thing pledged. Such remission is presumed until an evidence proves: *the thing pledged was possessed through theft. *the thing has been sent for other causes, such as repair, inspection or safekeeping. *the thing is not owned by the third person who possesses it. Category:Obligations and Contracts Category:Extinguishment of Obligation